Today’s post is a continuation of the ongoing theme of rights, and will (I hope) more clearly explain one reason I think written rights ought not to have been included in the U.S. (or any) Constitution.

Rights and Reasons, Form and Substance

When we talk about rights, we’re talking, essentially, about guarantees. If I say a person has a “right” to free speech, for example, that means I believe she ought, legally, to be guaranteed the freedom to speak, no matter what her opinion.

The thing that makes rights so powerful is that this guarantee is assumed to be secured beyond the scope of any law. If our Constitution endorses the “right” to free speech, that means that no law may be made or interpreted in any way that causes the freedom of speech to be denied to citizens. Rights are, therefore, above both government and law.

Almost all rights explicitly endorsed by a nation are, therefore, protections against abusive actions by persons and against abusive actions of the government itself. This is because they are the codifications of virtues we believe to be sacrosanct – virtues that stand above the temporal whims of politicians or the public. They are the things we can depend upon even when all else fails, and this in turn is why we treasure them so much.

All rights are based on some ideal – some virtue or principle we believe is essential to our pursuit of justice. To continue with the free speech example, our endorsement of the right to free speech is based on several virtues Americans value fiercely (though many may never have thought about it explicitly).

The most important of these are the principles of agency and equality. A person being treated as an “agent” means they are assumed to be capable of handling their own affairs and making their own decisions in both the moral and political realm. This is the sort of “self-evident” truth to which Thomas Jefferson referred in the “Declaration of Independence.”

This principle of agency is joined in American tradition to that of equality. In fact, so firmly are the two ideals embedded in the American psyche that the marriage of agency and equality is the basis of most of our rights. Words like “freedom” and “liberty” make their way more frequently into our conversations but these virtues too owe their existence, in the end, to Grandfather Agency and Grandma Equality.

The reason we endorse freedoms like that of religion and that of speech is because we think people ought to be considered as equally capable of making legitimate decisions using their own faculties. Their conclusions do not matter as much as the fact that they, thinking persons of sound mind, came to them using their own minds.

If this is the case – and, according to anyone subscribing to the ideal of universal equality, it is – it must mean that differences in religious and political beliefs are only external. Different conclusions may be arrived at by different persons for different reasons, but the fact that one person comes to a different conclusion than another does not reflect on her ultimate intelligence or character; it just means she interpreted the problems and outcomes differently.

If you accept the principles of agency and equality (and I strongly suggest you do), it follows that there are myriad ways to think about life, religion, justice, and everything else, and that these are all, as products of agents, equally legitimate points of view. Any choice between these points of view – say, Christianity as opposed to Islam, or republicanism versus democracy – becomes arbitrary.

Why? Because people of equal agency, using the same faculties as the rest of us, came to different conclusions. If we are all equal, then we are unable to (1) assert the supremacy of our own opinions and (2) definitively disprove others’ (speaking here of the realm of ideals and opinions, not of empirical science). This being the case, it makes no sense to make laws banning one type of belief and not another. If differences in belief are arbitrary, how can you choose selectively among those beliefs and outlaw only certain ones? Legally speaking, once you accept that all people have an equal claim to agency, the only approach that makes sense is to give everyone the right to hold his or her own opinion. We call this “freedom of conscience.”*

*It is true that we codify certain beliefs into our laws while rejecting others, but the key point here is that a belief is not forbidden; it is only certain acts arising from that belief that are forbidden. It is fine if you believe that “the wages of sin is death.” If you take it upon yourself to collect the toll in that particular reckoning, however, it becomes an entirely different matter.

Once you come to embrace the principle of freedom of conscience, it is a small step to endorsing free speech. If all people are equally able to form their own legitimate ideas and none of these ideas is subject to censure by the government, after all, there should be no problem with everyone sharing their thoughts with everyone else. Their doing so will only expose others to new ideas and give everyone greater opportunity to either correct or to refine their own beliefs.

The right to free speech, then, is not something that arises of its own accord. It is, instead, the manifestation of a greater freedom, the freedom of conscience. But this freedom is also not something that gives rise to itself. Instead, like all rights, it requires a justification. And in order to find a justification of the right to conscience and (by extension) free speech, ultimately we must refer to something greater – the aforementioned principles of equality and agency.

The right of free speech is integral to our conception of justice – so much so that it is above the law. However, even more fundamental to the right is the reason. Without the reason, the right loses all its moral force and becomes arbitrary. Worse, it becomes an arbitrary protection that is immune to the law, which means its effects are beyond the scope of our ability as a political body to control.

The connection between the right of free speech and its governing reason – our belief in universal agency – is crucial. In order to institute a right, we absolutely must have a reason. Moreover, given the scope of rights’ influence on our lives, the reason must be compelling. A right is merely a tool – a pawn in the service of an ideal. Every tool requires a purpose if it is to be put to good and wholesome use. Should it become detached from that purpose, a tool may easily become useless or – worse – dangerous. An ax in the hands of a skilled lumberjack is one thing. An ax in the hands of an angry drunk is quite another.

Rights, when detached from their governing reason, can also become dangerous. However, whereas an ax in the hands of a drunkard is but a single incident involving a single person and is punishable by law, a right is wielded by an entire society in perpetuity and is immune to the law. As such, the danger of a misplaced right is far greater than that of a misplaced tool.

What is the proper use of a right? It is to guarantee, insofar as it is possible, the fulfillment of an ideal. The right is the form, but the ideal is the substance – the right’s reason for existing. This is true of all rights.

Take the Sixth Amendment. The purpose of the right to a “speedy and public trial, by an impartial jury” is to fulfill the ideals of human dignity and autonomy. We believe all humans ought to be treated, by default, with dignity, and to be left in control of their own affairs. As it is an insult to a person’s dignity to arrest him arbitrarily and deny him a fair trial, and as the outcome of this act is to rob him of his autonomy, we believe it necessary to guarantee that such things will never be allowed under our code of laws.

The rest of the amendments in the Bill of Rights are likewise meant as guarantors of certain ideals. The Second Amendment is meant to protect citizens’ ability to preserve their own autonomy. The Third Amendment, like the Sixth, protects both their dignity and their autonomy, as do the Fourth, Fifth and Eighth. The Seventh promotes uniformity, which reduces down to an issue of dignity and equality. Finally, the Ninth – perhaps most interestingly – endorses the ideal of implicit liberty. That is, despite its being included among a list of explicitrights, it is the founding fathers’ attempt to keep the Bill of Rights’ existence from being interpreted to mean that the rights listed are the only ones possessed by the people.

As I have written before, the Ninth Amendment is confusing because it seems to make the entire list of rights superfluous. Why bother writing a list of rights if, at the end of all these painstakingly worded guarantees, you end up including one that essentially says, “It is not necessary to write down rights in order for people to possess them?”

Nevertheless, even if this objection is ignored or suitably answered, there are other problems with rights theory in general. The one I will address today is that the codification of rights often serves to detach them from the ideals they are meant to promote. Over time, it often becomes the case that the written right is followed strictly and defended ardently, even when the right itself no longer promotes the ideal as originally intended. Put simply, over time it often happens that the right becomes divorced from its reason.

Take a moment to think about this. If, as I believe, it is true that over time many rights have a tendency to become detached from their reason, this is a disastrous outcome. So disastrous is this outcome, in fact, that I think it calls the very existence of rights into question.

The Second Amendment and the Right to Bear Arms: A Case of the Detachment of Right from Reason

The ideals behind rights are not merely connected to them by chance. They are the reason those rights exist in the first place. If a right is no longer connected to the ideal it is meant to promote, there is no reason for that right to exist. Worse, the behaviors protected by the no longer relevant right may continue to be immune from government’s or society’s influence and used, instead of promoting the ideals we value, to damage them.

This is more than just theory. It is, in fact, exactly what has happened in the United States of America and the Second Amendment’s guarantee of the right to bear arms.

The actual Second Amendment is quite short and seemingly innocuous. It reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

This seems fairly straight forward but, excessive 18th Century commas aside, it is actually notable in two ways. First, it is exceptionally clear and succinct: citizens should not be prevented from or hindered in their right to own and bear weapons, and that’s that. Second – and even more interesting especially given the volatile nature of today’s debate concerning gun laws – unlike most of the rights elicited in the Bill of Rights, the Second Amendment also includes the reason the founders saw fit to include it: their belief that the state needed an able, organized militia to preserve its independence and autonomy.

We have here an amendment that consists of two portions: right and reason. The right is the freedom of citizens to keep and bear arms. The reason is to maintain a well-armed militia with the purpose of maintaining a free and independent state.

The substance of the Second Amendment is that it protects and maintains the security of the state, and by this is meant its autonomy from external invasion or insurrection or whatever else threatens the state. But rights, although they may be (and indeed always are) conceived in order to fulfill some ideal, are not, in the end, things of substance. We have another word for concepts of substance in political speech, and that word is “ideals.”

A right is not an ideal. It is a guaranteed protection whose intention is to fulfill some ideal. In the Second Amendment, the phrase, “A well regulated Militia [is] necessary to the security of a free state” is not a right. It doesn’t even make sense grammatically to call that a right, because a right is a protected behavior and the phrase “a well regulated Militia is necessary to the security of a free state” cites no behaviors whatsoever. As nice as it seems to have this little explanation attached, it is in actuality completely unnecessary and almost entirely irrelevant when it comes to the enforcement of rights.

Interestingly, most of the rights in the Bill of Rights do not include any justification whatsoever, from which we can infer either that the founding fathers thought such justifications had no real legal purpose or that they were so obvious as to be implicit in the right itself. However, something about the Second Amendment – perhaps the lack of an intuitive and lasting reason for its existence, or because its inclusion was controversial – caused them to include a justification. I will not waste time speculating as to what this cause truly was, because the result is the same: they included the right to bear arms, and accompanied it with a rare justification.

When it comes to enforcement, the only truly relevant part of the Second Amendment is its imperative portion: “the right of the people to keep and bear Arms, shall not be infringed” (again with the superfluous commas). As nice as justifications are, this latter part of the Second Amendment is the only one that the government heeds, and rightly so, because it contains the only practicable directions given by the Constitution’s writers.

When you decide to include explicit rights as part of your political code, this is the deal you necessarily make: you agree that you will write specifically protected behaviors into your Constitution (rights), and in doing so you accept that the impetus is fully upon you to write those behaviors explicitly and clearly into your list of rights.

In articulating a right, you are writing the real-world form – based on your own experiences and viewpoint, from the perspective of a distinctive period (in the case of the American Constitution, the late 18th century filled with muskets, a frontier of natives and a war-prone and unpredictable Europe across the seas) – you think the ideals you value will take. The ideals you want to protect are what truly matters, but due to the awkward nature of rights, you are forced to imagine and articulate the kinds of behaviors that ought to be protected in order to pursue the ideal, as opposed to simply writing the ideals you espouse and leaving the enforcement of them to posterity (a thing older generations have been reticent to do for the entirety of history).

When you agree to include rights in your country’s governing document, you are forced to address form rather than substance. This is an incredibly awkward approach because, as stated previously, form once detached from substance is meaningless and potentially even harmful. In the end, it is the substance that truly matters, but rights are not attached to substance.

As is usually the case, at the time the Second Amendment was written this distinction made no difference. In America’s early years there was no confusion regarding the Second Amenment’s form and substance. They were implicit in the times themselves.

Here is what the world looked like to an American in the late 18th century:

The colonies had just gained independence from Great Britain yet had no professional standing army. Instead, the militias from the states had worked together and, over the course of the Revolution, coalesced into a fighting force capable of defeating the famed British regulars.

As they had no standing army and the young nation was as yet undeveloped but pregnant with many resources that would surely look attractive to any ambitious world power willing to try its luck where the British had failed (including the British themselves, as would happen in 1812), the colonies felt their vulnerability keenly. They were as yet, however, too loosely and tentatively allied, too underdeveloped economically, and too far removed (5,500 kilometers of ocean) from threatening nations to make the maintenance of a standing army a practical solution. Nevertheless, the danger of invasion from either European powers or from the Native American nations that still heavily peopled the frontier was still real enough to make security a substantial concern.

The threat was, therefore, simultaneously not large enough to justify funding an entire national army but large enough to make security a vital issue. Meanwhile, there was another consideration in this odd calculus: the colonists’ suspicion of centralized government. They had just fought a long and costly war brought on (in their minds) by an abusive government, and most were of the opinion that the best – perhaps the only – way to prevent this kind of abuse from repeating itself was to drastically limit centralized power of any kind. And what form of centralized power had ever lent itself more readily to abuse than a monopoly of control over national armed forces? The states were, then, unwilling to grant – indeed, categorically opposedto granting – the central government perpetual control over a standing army.

The solution? The same thing that had won them their independence: a collection of ready and capable state militias that could be summoned at need and led by local and state commanders. It was a solution that seemed eminently natural and reasonable at the time, and indeed it was.

But such was the colonists’ fear of centralized power that they thought simply preventing the national government from holding control over a professional army was not enough. Power-hungry national or even state governments might try to consolidate power slowly, through a gradual accumulation of ever more invasive laws. One of the ways they saw this as potentially happening was through a series of laws outlawing private arms. If the people were deprived of the right to own their own arms, central governments would come to hold a monopoly on force, even despite there being no standing military, by simple virtue of controlling all the weapons.

The wary Constitution writers, then, in order to guarantee the preservation of an armed force capable of defending the young nation but simultaneously protected from the reach of a conniving government, wrote the Second Amendment. And, if you are a proponent of the theory of rights, it seems, given the context of the times, to have been an entirely reasonable step.

But much has changed in two hundred twenty-five years. The national government’s power, for one thing, is much broader and more pervasive than the colonists could have ever imagined. Even more remarkable, this expansion of its power has resulted not from the unilateral ambition of a despotic government but at the consent of the people. Much of the national government’s growth has come at times when localized abuse required the people to seek justice in the broader confines of the collective rather than more restrictive norms of local counties or states. Our nation, as a result, is much more centralized than it was in colonial times, and on the whole – certain notable exceptions aside – the people of today are less afraid of the idea of the national government handling diverse and consequential affairs than were those of yesteryear.

As dramatically as the balance of power has shifted between the state and the nation, the state of the military has changed even more so. State militias are now largely forgotten and impotent relics of the past. Our nation not only possesses a standing professional army but the most powerful military force by far that has ever existed on the face of the earth. So massive is this army that the very idea of a state militias – either in terms of providing protection from external threats or of competing against the incursions of the national government – is completely derisible. The United States is not remotely threatened by any outside nation, and if it was, the national army would be infinitely more capable of providing protection than parochial state militias. Moreover, if an abusive U.S. government asserted military force upon an individual state, the state’s militia would not stand the remotest chance of staying its advance. The very idea is laughable.

In every interpretation, then, the substance of the Second Amendment – the reason it was put into place – has become obsolete. So vastly has the face of the United States and the world changed that the entire premise on which the Second Amendment was founded has become irrelevant.

Yet, in some mutant form long divorced from its original intent, the right to bear arms remains. Why?

Well, for one thing, rights are not easily changed. Holding as they do a status that is above and superior to the law, changes to rights are undertaken only with grave and tentative deliberation, and duly so. For those who believe in explicitly articulated rights, they are as near being sacred as anything that can be written into law. As such, people are wary of the consequences that changing them may have upon their freedom.

Another reason rights sometimes persist even after they have become irrelevant is that rights have a two-way relationship with our customs and traditions. In one way, they are the product of our traditions and the reflection of our customs and beliefs. In another way, however, the codification of rights into our laws also shapes our political worldview. We come into the habit of defending our behaviors because we “have the right to” bear arms, or to speak freely, or to remain silent. Over the decades and centuries, these rights, so often cited, become not only derived from but constitutive of our identity. They become ingrained in our beliefs, even independent of the ideal that once called for their existence. And a belief once ingrained into the ethos of a people is not easily eradicated.

That turn of phrase, “I have the right to __________,” is very common to us, isn’t it? It is probably the most common way in which we refer to rights in common speech. It is in this form that a person refers to her right to own a weapon. She does not say, “A well organized militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Instead, she says simply, “I have the right to bear arms.” This is perfectly reasonable, because the only legally relevant part of any right is the explicitly protected behavior – in this case, the right to bear arms.

Because of the centrality of rights to our code of justice, “I have the right to bear arms,” has become the default defense of gun rights advocates. But, crucially, this very phrase – just like the legally actionable part of the right itself – makes no reference to the reason a gun-bearer has a right to own and carry a weapon; it is only concerned with the right itself. Again, even though the purpose of the right to bear arms was the security of a free and independent state, this is almost never part of a contemporary citizen’s defense of her right to own weapons (and if it was, it would be fallacious in the face of modern military realities).

The consequence of all this is that while the substance of the Second Amendment has become less and less relevant, and is indeed today entirely irrelevant, the form – the actual right to bear arms – has become more firmly cemented in Americans’ minds. In fact, in the case of the Second Amendment, this separation has become so pronounced that in modern times there is in reality no connection whatsoever between the right to bear arms and any of the reasons the right to bear arms was originally granted. The right still exists in form, but its substance has long since passed away.

Even by the founding fathers’ own standards, then, there is no longer a reason Americans should have a general and sweeping “right to bear arms.” In fact, many would argue (I among them) that the persistence of this right long after its reasons became obsolete has caused a proliferation of needless and dangerous weaponry that annually costs far more lives – and ultimately freedom – than it protects.

The Fatal Flaw of Rights: Protection of Form, not Substance

It is imperative to understand that this is a direct and unavoidable consequence of written rights. It is the product of a detachment of right from reason – the detachment of form from substance – which is inevitable given the stagnant nature of words and the dynamic nature of society.

If we had a legal system that was not focused on form but on substance – if instead of writing out specific protected behaviors (rights) we simply constructed a broad “endorsement of principles” or articulated as best we could a list of ideals we want to promote, giving examples that were illustrative but not binding (as opposed to rights, which are completely binding but only on specific and fairly narrowly defined behaviors) — we would not have this disparity. We would in doing so be directly promoting the ideals aimed at by rights theory without running the risks that come with a detachment over time of form from substance.

Rights were born of a noble cause. They are an attempt to promote certain ideals which I believe to be among the most beautiful and worthy virtues ever conceived by humanity. However, they are unnecessary for this task and inefficient in achieving it. They are unnecessary because if we simply required our laws to promote the ideals behind the rights, we would not need the rights themselves; just as once we openly proclaim that we endorse the principle of universal equality we do not need afterwards to list the individual people to whom this principle applies. They are inefficient because by addressing only form and not substance, rights cannot fully embody the ideals we wish to advance. They will always, therefore, be subject to the changes of a world that is far more unpredictable and dynamic than even the most eloquent words conceived and written by our greatest minds.

What is far more tragic is that rights detached from reason can often actually be harmful, a fact which, again, stems from their focus on formrather than ideal. The result, as we have seen with the Second Amendment, can be the protection of a right that is ultimately harmful, while the ideal that the right was created to protect is left behind.

Like a tool which, built for a worthy purpose, may become an instrument of malice when placed to another, so rights when detached from their governing virtues may become instruments of oppression rather than of liberty, exactly as has happened in the case of the Second Amendment to the Constitution of the United States of America. And until we discard the awkward and inefficient rubric of rights, we will always be subject to the destructive consequences of their inevitable obsolescence.